How to respond to a subpoena to produce
The forms of subpoena to produce used in most courts now contain extensive notes that explain how to comply with the subpoena. These should be followed. Subject to that requirement, the following steps should be taken to respond to a subpoena to produce:
- Check the validity of the subpoena to produce. The document should bear the issuing court’s seal and must have been served on or before the date specified in the subpoena as the last date for service.
- Identify the documents that must be produced in response to the subpoena. If the request contained in the subpoena is very broad or vague, consider seeking legal advice about having the subpoena set aside. Alternatively, it may be possible to negotiate the scope of the requirements in the subpoena with the party who caused it to be issued. Where possible, this is preferable to having the subpoena set aside.
- Collect and copy the documents for production, unless the subpoena specifically requires you to produce the original documents. In many cases documents can now be produced electronically (e.g. on USB or CD-ROM). The subpoena will ordinarily state this if it is the case.
- Identify any privileged documents and place them in a separate bundle clearly marked as privileged and not to be inspected.
- Complete the Declaration appearing on the last page of the subpoena and attach it to the subpoena or copy of the subpoena that accompanies the documents or things produced to the Court under the subpoena.
- Produce the documents to the Court by:
- delivering or posting the documents to the Registrar at the address specified in the subpoena for that purpose so that they are received no less than 2 clear days before the return date of the subpoena; or
- attending Court on the return date of the subpoena to produce the documents to the Court in person.
Contact the issuing party to negotiate an extension if further time is needed to respond to the subpoena. If the issuing party does not agree to an extension, it will be necessary to attend the Court on the return of subpoena date to seek an extension from the Registrar.
Loss or expense of compliance with a subpoena to produce
Court rules allow a subpoenaed party to apply to recover its reasonable loss or expense, including legal costs, incurred in complying with a subpoena to produce.
The court rules relating to subpoenas are identical in the Federal and NSW State courts. The rules state that the court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena separate from and in addition to any conduct money.
Other courts may have different rules with greater restrictions on costs recovery. In particular, it is no longer the case that all State Supreme courts operate under the same rules in relation to the recovery of subpoena costs. The guidance given below applies only to subpoenas issued by the Federal and NSW State courts.
Seeking costs of compliance in advance
Generally speaking a subpoenaed party has no entitlement to have its loss or expenses of compliance (as distinct from conduct money) paid prior to (and/ or as a condition of) complying with the subpoena, except in special circumstances. Generally the subpoenaed party is obliged to incur the expense of complying with the subpoena and then make an application to recover its reasonable loss or expense.
Recoverable types of losses or expenses
The following items of loss or expense associated with responding to a subpoena to produce can be claimed:
- time incurred by the officers of the subpoenaed party in dealing with the subpoena including searching for, collating and copying the documents required. This can be calculated:
- for a professional person who is taken away from their income earning activities to deal with the subpoena, at the ordinary charge-out rate of that person; or
- for others, by calculating an hourly rate based on the total of the salary of the person plus various on-costs associated with employing the person (such as superannuation, payroll tax and workers’ compensation insurance);
- disbursements, such as photocopying costs, fees for retrieval of documents from archives and CD-ROMs to burn copies of documents onto; and
- legal advice, as to which see more below.
Maximising recovery of expenses
The following steps should be taken to maximise recovery of loss or expense in complying with a subpoena:
- check that the subpoena is valid. Loss or expense will not be recoverable if it is incurred in response to a draft ‘subpoena’ which has not been properly issued by the Court;
- put the issuing party on notice that substantial loss or expense will be incurred in properly complying with the subpoena, if this is the case. If there is a way in which the cost of work can be reduced by negotiating the scope of the subpoena then this should be suggested;
- comply with the subpoena in a way that minimises the amount of cost and expense. There is an obligation on a person answering a subpoena to do so in the quickest and most cost effective way possible;
- calculate the amount of loss or expense;
- demand and negotiate payment from the issuing party; and
- if necessary, file a notice of motion seeking an order that the issuing party pay the amount of any reasonably loss or expense incurred in complying with the subpoena.
Payment for legal advice incurred in answering a subpoena
A substantial amount of any claim for costs or expenses may be made up of a claim for legal fees rendered in connection with answering the subpoena. Claims for legal advice can be made (including, where reasonable, obtaining the opinion of counsel) in relation to:
- compliance with the subpoena (including whether to comply with it at all or in part);
- correspondence or negotiations about the scope of the subpoena or terms of access to the material;
- advice on confidentiality and privilege issues; and
- court attendances and other reasonable costs.
Privilege issues when responding to subpoenas
If you have received a subpoena, it is necessary to produce all subpoenaed documents to the Court, even if they are privileged. If any privileged documents are subpoenaed, collate them in a bundle and clearly mark the bundle as privileged (and not to be inspected) before producing it to the Court. Attend the Court on the return of subpoena date to ask the Court to make a no access order in respect of the documents marked as privileged.
Confidentiality issues when responding to subpoenas
If you have received a subpoena to produce, it is necessary to produce all subpoenaed documents to the Court, even if they are confidential. However, if the subpoenaed documents are confidential or contain confidential information, the Court may make orders regarding access to, and inspection of, the documents/information. Such orders may include that only the parties’ legal representatives have access to and can inspect the documents/information, or a nominated individual within an identified company.
If you are required to produce confidential documents or information pursuant to a subpoena to produce you could:
- first contact the party who issued the subpoena to seek to agree a confidentiality regime by way of confidentiality undertaking or agreement in advance of production; and/or
- apply to the Court issuing the subpoena for appropriate confidentiality orders.
In either case you should collate the documents to be produced in a separate bundle (for example in either a folder or envelope) and clearly mark them (or the relevant part(s) of the documents) as confidential before producing them to the Court so that it is clear over which documents/information confidentiality is claimed.